Actions Taken Other Than in
or political subdivision thereof, nor, ex-
Accordance with the Disaster Act
cept in cases of willful misconduct, gross
If action to dynamite or otherwise remove ice
negligence or bad faith any civil defense
jams from rivers is taken and that is not in accor-
worker complying with or reasonably at-
dance with the Disaster Act, the defense of that
tempting to comply with the provisions of
[the Disaster Act]...or any order, rule or
action would be much more difficult. There is no
separate and specific authority which the state,
regulation promulgated pursuant to the
provisions of [the Disaster Act]...shall be
counties, or other political subdivisions could use
for such action. And, it is clear that the rather
liable for the death of or injury to persons,
considerable protection from liability granted by
or for damage to property, as a result of
the Disaster Act would not be available. Without
any such activity."
the limits on liability imposed by that act, govern-
There are two different standards concerning
mental liability would be determined in accor-
liability in the quoted material. For the govern-
dance with the State or Political Subdivisions Tort
ments--federal, state, or local--there is no liabili-
Claims Act, whichever was applicable. The gov-
ty as long as the activity is conducted in accor-
erning section of the Political Subdivision Tort
dance with the Disaster Act (which means
Claims Act is section 13-910, R.S. Supp, 1993. For
pursuant to a state or local declaration and in
the state act, the governing section is section 81-
accordance with the previously prepared disaster
8219, R.R. Supp, 1993. Both effectively establish a
plan). For civil defense workers, which include
negligence test as the standard for liability. Under
employees, volunteers, and auxiliary employees
those statutes, the state and its political subdivi-
of the government or "of any agency or organiza-
sions are liable for damages to the same extent as
tion performing civil defense services at any place
private citizens would be for the same actions.
in this state subject to the order or control of, or
pursuant to a request of, the state government or
any political subdivision thereof... ," there would
Nebraska Game
be liability only in the event there is willful mis-
and Parks Authority
There is one other statute which deserves men-
conduct, gross negligence, or bad faith.
tion here. That is section 37-515, R.S. Supp, 1993,
Section 81-829.55, R.R.S. 1943 was used suc-
which relates to the necessity of obtaining ap-
cessfully to prevent the state and Department of
proval from the Game and Parks Commission be-
Roads employees from being held liable for dam-
fore exploding any dynamite in any lake, river,
ages caused by the removal in 1978 of an ice jam
stream or other waters of the state. However, that
on the Platte (Cain v. State, Case No. 10163, Saun-
ders County, 1981). It is not clear whether this
section specifically provides that the requirement
protection for civil defense workers extends to
". . . shall not apply where, to safeguard public or
private property from damage by ice gorges, im-
contractors although they may be included with-
mediate use of explosives is necessitated." Unless
in the term "organization" as used in the statute.
there is a question about the immediacy of the
Private contractors may, however, want to secure
action needed, approval by Game and Parks
insurance to protect them against an action based
would not be needed.
on a regular negligence standard.
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